Thursday, November 29, 2012

To most, the terms 'living will' and 'living trust' may seem a little strange. Many times they may be used interchangeably. It is wrong when used this way. You need to understand that a living will is very different from a living trust. They do share some similar characteristics but when know their exact definitions you will be able to use them both to your advantage.

A "Living Will" is a legal document that states plainly what your wishes are regarding any health care decisions to be made should you be incapacitated by a terminal illness or enter a permanent vegetative state. A living will only takes effect once it is shown by evidence of incapacity that you are unable to participate in any decision-making in regards to your medical treatment.

Of course, state law will govern the application of living wills, the statutes being different from one state to another. Be careful when drawing up a living will and be sure to follow a state-specific procedure so as to avoid any conflicts. After all, this is a lawful document.

In simple terms, a living will tells the doctors and/or the legal system what your desires are should you be unable to make decisions regarding your health or any future directives that are your wishes.

A 'Living Trust' is a written lawful document that can take the place of a will. It allows you to place any or all of your assets in a trust to be administered to your advantage for as long as you live. The rich do this in order to pay less taxes. In the event of your death, all your properties will be transferred under the terms of the trust to those named as your beneficiaries.

The billionaire, H. T. Hunt, when he died, personally owned, only an old pickup truck, but his trust covered two pages of the Houston telephone directory. The billions of dollars were passed to his heirs for about one million dollars, showing the benefits of using trusts.

Basically a living trust guarantees that your assets will be handled according to your wishes. In setting up the trust, you may initially want to serve as its trustee. You should be thinking in the future, when it would be best that you select a successor trustee, while you still have a sound mind and can make thoughtful decisions.

When you are incapacitated or pass away, the successor trustee you have appointed will act similarly to an executor of a will. The functions will include; paying any remaining debts, taxes and claims against the trust; and distributing the properties of the trust according to your written orders. These tasks may be carried out without court approval or supervision which may save many, many dollars.

A living trust is usually not considered a top priority and not everyone would benefit a great deal from one. For a person with modest assets, a living trust would have no benefits as they are mostly used to lower taxes and pay less or no inheritance taxes.

A living will and a living trust definitely differ in a lot of ways. While a 'Living Will' is usually appropriate for almost everyone, a 'Living Trust' should be studied and applied typically on a case-to-case basis. For more information, go to your local library for more and up-to-date information.

Wednesday, November 28, 2012

If you are a retiree, you likely have heard many claims made about probate problems. The word itself may even fill you with dread. If you are planning your estate, there are some things you should consider concerning probate. In this, as in all things, it is important to take a balanced approach. Let's review some of the issues pertaining to probate. Then you can decide if you need to approach your estate planning differently.

What is the purpose of probate?

You have heard this word many times, but may never have considered what it means. In legal terms, probate is the period of time during which a will is proven authentic or valid. The purpose of probate is to distribute an estate according to the decedent's wishes described in his or her will. Typically, the first step of probate is to use the person's probate assets and property to pay all debts. After that, any remaining assets and property are distributed to persons named in the will. There may be costs associated with the probate process.

Probate ensures that your wishes for the distribution of your estate are carried out upon your death. Probate is a public process. If your estate is of any size, your heirs could suddenly have new friends trying to advise them on how to manage their newly inherited assets.

People often assume all assets are subject to probate, which raises the following question.

Are all assets subject to probate?

No. Some assets are excluded from probate. An example would be assets that are held in joint ownership with rights of survivorship, such as your personal home. Other assets not subject to probate are those governed by a beneficiary designation. This would include assets such as your 401(k), IRAs, life insurance policies, and annuities. Additionally, assets held in a trust are not subject to probate. If the majority of your estate assets are held in accounts of this type, you may not have that much to be concerned about.

What about my brokerage and bank accounts?

These types of accounts can be set up to transfer on death (TOD) to a beneficiary. This designation allows you to pass securities and banking accounts directly to another person (your TOD beneficiary) upon your death without having to go through probate. By setting your accounts up this way, the executor or administrator of your estate will not have to take any action to ensure that your accounts transfer to the person you have designated. The TOD beneficiaries will have to take steps to retitle the accounts in their name, but this is not a very cumbersome process.

As you can see, probate may not be as bad as you have heard. There are many things to consider during the estate planning process.

Tuesday, November 27, 2012

Will I have to go to probate court? When is probate required? These are common questions people have when someone passes away. Probate laws vary from state to state so it is always a good idea to consult with probate attorneys about whether or not you need to attend probate court. But here is some basic information to help you determine if probate is required.

What is Probate?

In short, probate is the transfer of person's assets after they die. Probate is the legal process of distributing the assets and estate of a deceased person. This includes resolving all issues of probate property like taxes, insurance, title, and paying creditors for any outstanding money owed by the deceased. Probate is usually applied to large estates or significant sums of money. Assets eligible for probate varies from state to state, country to country. You have to check for specific probate laws or with a probate lawyer in your region to determine if the deceased's assets were significant enough to warrant a probate.

What is Probate Court?

Probate court is a surrogate court that interprets the will and appoints the executor. Probate judges the validity of claims made against the estate through heirs and beneficiaries as well as taxes and debts. Further reading about probate laws is available at ObituariesHelp.org

When is Probate Required?

There really are only five reasons why you'd have to go to probate court to either make your claim on the deceased's assets or to prove that you are a legal beneficiary. If any one of the following applies to you or to the deceased, then you might want to consult a probate attorney.

1. Probate court is necessary if the will is deemed invalid for one of these reasons:

* Improper Execution - it wasn't written clearly or it was not a legal will.* Mental Incompetence - the deceased was not mentally competent when he or she made up the will so their decisions are questioned.* Undue Influence - the deceased was under duress when he or she wrote up the will.

2. Probate is required if the deceased didn't have a Last Will and Testament. If there is no will, then there has to be a legal and equitable probate court process for distributing the deceased assets and for transferring the title of probate property. The only way to do this is with probate.

3. Probate is required if the assets were owned solely by the deceased. If there were no other owners or designates of the property or asset, then in most cases the property will have to be probated to get it out of the deceased's name and into the beneficiary's name.

4. Probate is required if the assets were owned as a Tenant in Common or Joint Tenancy. What this means if the deceased owned property jointly with another person, such as in the case of a common law marriage, then probate is required to ensure that the deceased's share of the property is properly distributed to legal heirs.

5. Probate is required if there are no designated beneficiaries or if all of the beneficiaries have predeceased the decedent. In the case of life insurance policies, retirement funds or certain savings accounts, beneficiaries are usually named. But if all the named beneficiaries have passed away or if the deceased didn't name beneficiaries, then probate is required to transfer the money or title to the beneficiaries.

One thing to remember about knowing when is probate required? Probate is required if there are significant assets to be distributed or creditors to be paid outside of what is legally stated in the will or if there is no will at all. If any of these five reasons apply to you or your situation, you can expect that probate is required and you'll have to appear in probate court.

Article Source: http://EzineArticles.com/2239636

Do you need help with probate paperwork? BY THE PEOPLE is a Document Preparation Service located in Fairfield, California available to help you represent yourself in many uncontested legal matters.

Monday, November 26, 2012

If you have any assets, you want to make sure that they are cared for after your death. Leaving beneficiaries that are responsible for taking care of every item that you own ensures your final wishes are met. Making a will that provides details about your final wishes allows all beneficiaries to have a clear understanding of what is supposed to happen with the assets and other components that are left behind with your need.

When you begin making a will, you will need to consider the different pieces to put together the final wishes you have. A will requires you to first list what your assets are and which beneficiaries should receive these assets. You will also need to have a mediator that divides the assets and ensures that all divisions are made correctly. This is continued with what happens with other divisions of responsibilities while combining legalities to help with the wishes of the individual which is deceased.

The legalities that are associated with the paper work you include not only are inclusive of the wishes you have after you have deceased. There are other speculations which are included from the lawyer and witnesses that are responsible for your will. You want to make sure you understand the legalities behind inheriting assets and giving these to beneficiaries. This is inclusive of concepts such as inheritance tax. This is a death duty which taxes those who own the assets but have passed away.

The inheritance tax ties into the other aspects of the will to make sure that everything is clarified before your death. The amount of tax combined with the assets needs to be defined by those who are beneficiaries to your assets. This needs to be clarified with the approach you take to the final will and testament that you take. You can further this by clarifying the death duty to the beneficiaries while making sure there is clarity with the assets and legal attachments that bind individuals to the inheritance.

Preparing for your death is important at any age, specifically to avoid confusion with your final wishes. Making sure you have the right approach to the inheritance you are leaving behind can help to avoid disputes and future problems. Combining the right legalities with the basic outline for your testament allows you to get the right approach to creating your final wishes while making sure all beneficiaries understand the expectations and legalities associated with this.

Sunday, November 25, 2012

The durable power of attorney (POA) is a legal form, which can be used by a competent adult to appoint another person to act as their agent to manage their financial affairs. It's 'durable' because it stays in full effect even if you become disabled. Usually at inopportune times would be when you need your agent the most, that's why this legal form was created. Unlike a general POA it won't be inoperative when the principal, person who made the poa, becomes disabled. Although the agent has this power, he must operate under the terms, conditions, limitations, and guidelines outlined in the durable POA.

If you were ever to become disabled, for any reason during your lifetime and did not have a durable power of attorney then you have just missed your chance to appoint an agent. The only way some one could be appointed to act on your behalf is if your local Probate Court was requested to appoint someone. These proceedings are called 'Guardianship proceedings' or 'Conservatorship proceedings'. Unfortunately, this process is expensive and time consuming. That's why most people decide they don't want the court to be able to intervene, they want to be able to choose their own agent they trust, and that's why they fill out a durable poa.

Another advantage to having a durable power of attorney is that it can be used to protect your assets. When a disabled person enters a nursing home that did not take steps to shelter some of their assets, then all of the assets could be exposed to being used to pay for the nursing home care. Under the current law, up to one half of those assets could be transferred or gifted and thus sheltered by using a properly drawn up durable poa that permitted gifting. Without a durable poa with gifting provisions then it's unlikely a disabled person will be able to protect any of their assets if they're emitted to a nursing home.

Defining the agent's authority is completely up to the principal. Under the durable power of attorney, the principal can make the agents authority as broad or as limited as they wish. A typical form will be drawn up giving broad authorities so that the agent can manage any and all financial affairs. Other principals may only want their agents to handle certain assets or follow a specific wish, that's perfectly ok too. As an example you may give your agent the power to handle your stocks, bonds, banking, insurance, and tax matters or other matters on your behalf.

Sometimes a durable power of attorney will have more than one agent. You must decide if they will act independently or decide on issues together. Most people believe its better allow them to act independently to avoid conflicts and court battles that could delay a decision. Or, instead they will name their second agent as an alternative in case something happens to the primary agent.

Disclaimer: This article has been written for information and interest purposes only. The information contained within this article is the opinion of the author only, and should not be construed as legal advice or used to make legal decisions. Consult an attorney in your area if you're seeking legal advice.

Saturday, November 24, 2012

When a marriage fails, there a few different options for the couple. Some options include marriage counseling, legal separation, contested divorces or uncontested divorces. When going through a divorce, today's most popular way is an uncontested divorce. Uncontested divorces can bypass many expensive legal avenues while making the process quicker.

No matter how you look into a divorce, it's going to be expensive. Uncontested divorces allow the separating couple to save more money and time. Whatever the reasoning behind a divorce, it is not easy for anyone associated with either party. Having a contested divorce, will only make things more difficult on you and your pocketbook in the long run.

For obvious reasons, both parties of a divorce have disagreed on certain issues and will continue to do so in the future. If both parties understand that it won't work out, but can still rationally work out agreements, an uncontested divorce would work out best. If major issues can be solved during mediation and not have conflicts, it can save you thousands of dollars in the long run. Everyone knows that divorce will bring heartache to both sides, but choosing an uncontested divorce will make the process more understandable.

If however, there are issues where both parties are too far apart in a fair agreement, then a contested divorce may be more likely. Many issues that are become combative are child custody, child support, alimony, asset division, liability division and other financial obligations. Many couples fight over these items in a divorce due to the high financial or sentimental value that carries with them. Depending upon your location and laws, sometimes an uncontested divorce isn't even an option when children are involved.

Many divorce records are now made available to the public. If you choose to take the uncontested divorce route, subject matters will not be made public unless both parties decide upon it. However, if a contested divorce is your only option, all matters regarding a divorce a disagreements between spouses become public record. This privacy issue may not work with all couples going through a divorce. If both parties can't come to an agreement, then contested divorces must be implemented. Not only do uncontested divorces save everyone time and money, it may also keep your matters more private. Everyone has secrets, but no one needs to know about them.

By choosing an uncontested divorce will save you a lot of time and hassle through the legal system. If you cannot agree with your soon to be spouse, then a contested divorce may be more to your requirements. Usually both parties are in fumed with regret and remorse during the early part of a divorce. However, if both parties can think rationally and see eye to eye for a short amount of time to work out a few problems, with the help and mediation of divorce attorneys, then everyone will be able to save money.

Friday, November 23, 2012

Marriage is a beautiful relationship of care, love and intimacy where both parties work towards the betterment of each other. When couples decide to marry, they obviously do not intend the marriage to end in a divorce. However, it is sad that many couples find that they simply cannot continue living together and must break apart. The emotional stress apart, the legal aspect of filing divorce papers can also be very intense and overwhelming. Uncontested divorce forms can make things lot easier if both parties are on the same platform.

Technically, you have the right to contest a divorce but you can also opt for an uncontested divorce if you want to save yourself the trouble of a long drawn out legal process and exposing yourself to scrutiny. The fact is that when you contest the divorce papers filed by your spouse, you will be grilled in court and believe it or not, it is not going to be a pleasant experience at all.

Divorce applications are defined as either at-fault or no-fault divorce. The law allows that you can file divorce papers simply on the basis of incompatibility and irreconcilable differences without providing grounds (reasons or faults) for filing divorce. Of course, if you choose to you can allege faults but you have to prove them in court.

Regardless of which type of divorce you choose, it depends upon you whether you wish to contest it or not. Uncontested divorce may be filed through uncontested divorce forms, a simple procedure that covers all the issues related to a divorce. You can file uncontested divorce forms on your own or let an attorney file divorce papers on your behalf.

Considering the fact that nearly 50% of the marriages in USA end up in a divorce, the law has made it easier for married couples by providing an option of filing divorce papers by completing simple but extensive uncontested divorce forms on their own.

In the event you decide to contest a divorce you have to be prepared for it. Contested divorce means that you need to be ready for attacks from all sides. It is a long and complex process of discovery. It involves formal systematic questioning, a process known as the interrogatory. Each party has to send a long list of questions through an attorney and the other has to answer under oath.

The interrogatory includes questions regarding your finances, properties held singly or jointly regardless of whether they were acquired before or during the marriage, all assets and sources of income, debts and any other financial matter. Each claim and counter claim is keenly contested with and attorneys from either side may ask for documentary evidence in support of each and every declaration made in the divorce papers.

This is followed by a process known as Deposition a pretrial interrogation where you and one or more witness are required to answer questions under oath. This is usually conducted in a lawyer's office. The case is then argued in court where the primary aim of the lawyers is to develop on the loopholes identified in the other party's claim and negotiate a better deal for their clients.

Uncontested divorce is a simple procedure involving filing divorce papers through uncontested divorce forms. The precondition to filing divorce of this type is that both parties should have agreed on all issues. In an uncontested divorce it is important that all issues are settled one to one. If that is not

Wednesday, November 21, 2012

If you own a business or have shares in a family company then you should consider making a Will. The following are some of the reasons why making a Will for business owners is so important.

1. The first reason is the fact you can select appropriate executors and trustees, who will be responsible for ensuring the running of the business after your death. Unlike funds in the bank, where management can be fairly minimal, your executors will almost certainly need to ensure the business is kept running in the short term until more long decisions can be taken.

For even the smallest business, your executor's job is to ensure that your financial obligations are met, this can include dealing with tax issues, employees and your business accounts. Failing to do so could have a detrimental effect on the value of the business and therefore mean your family lose out financially. So while your may ultimately want your spouse or children to inherit, if they are not going to be the appropriate executors then you can appoint executors who have the business skills to carry out the executor's duties effectively.

2. The second reason is that by drafting your Will, you can take advantage of the tax breaks offered for business property. There are ways in which the Will can be prepared to ensure that not only do you pass your business to the people you want to inherit, but you do so in a way that limits your total inheritance tax bill as well.

3. The third reason is for making a Will is so that you define exactly how your executors can act. By making a Will, you are able to ensure that your executors have all the necessary powers and authorities they will need to carry on your business and run it correctly. Without a Will, your estate may end up in a position where decisions or steps that are needed to ensure the survival of the business cannot be taken when they need to be. This could mean either a lucrative business opportunity is missed or that an expensive Court application is needed. Either way the result is detrimental to your estate.

4. The final reason for making a Will is to ensure that your interest in the business passes in the way that you want. So for example if you have that children assist in the business while others do not, you can draft your Will to take this into account.

You may therefore decide to ensure that your children who are involved in your business inherit the shares, while the others take cash or other assets. Doing this ensures both a fairness in the way your children are dealt with, but also means that your children who do take a role in the business will not to lose their livelihood following your death. Additionally it means that they will not be forced to sell the business to pay their siblings, a move which may mean they also lose out financially.

If you own a business then making a Will really is something to consider very seriously. The time and effort you have spent in building your business, and its value to it may not be properly passed to your family if you do not make a Will.

Tuesday, November 20, 2012

Everyone has heard the term probate but not everyone knows that this term means. Probate is quite literally the process your family members will go through with the government after you have passed away. This is the transfer of your assets and finances to your chosen beneficiary or beneficiaries. The executor of the will is the one in charge of following this process through thoroughly and making sure that your wishes are carried out as clearly stated in your will. Your executor can be anyone, not necessarily a relative and they handle your vehicles and houses, everything that is left to them.

In the case that an executor was not named in a will or a will was never named than a court hearing will often name a relative to be the executor in order to get through the probate process as simply as possible. This person is not random but often the closest living relative or the person who received the most in the will should there be one that was written.

There are several different phases within probate. First, the executor or named administrator is required to prove the validity of the will to a probate court before anything can begin. Next the step is for the executor to provide statements of the deceased debts and assets as well as the list of beneficiaries in the will. From here the creditors will be notified of this death and they will then have only 6months to collect any debts that are owed to them, should there be any.

If money is owed it must be collected from the estate, not from the beneficiaries who inherit it. What this means is that the beneficiaries will not be able to inherit their money until the creditors receive what is owed to them. Whatever is left of the estate will then be distributed to the beneficiaries.

There are cases where probate court is not necessary to take care of a person's will. If a person has very few possessions and money to distribute the court is not necessary and the beneficiaries distribute the will without the law to guide them. Also, if anything is jointly owned, for example a husband and wife, the other person will get everything by default.

When people write their wills they almost never consider the act of probate and often do not even really understand how probate works. Probate should be part of your research and understanding before you begin writing your will and/or your estate. This is a very confusing stage in life that should be understood as best as possible for everyone. Probate can be a very pain staking cycle for your loved ones left behind and when planning your estate your lawyer can help you do what you can to avoid probate court for your executor.

Monday, November 19, 2012

The probate process in California begins with a legal request or petition that opens the estate and names a PR or personal representative who takes care of the deceased's property. An official Notice for Creditors is published in newspaper and a notice of same is sent to all the involved parties. Creditors are then given a set amount of time to file their claims depending upon the estimated time published in the notice. The PR then clears all the debts and dues remained in the name of deceased person and distribute the remaining estate to his close relative. Finally, the petition for discharge is filed and the estate is closed.

This is the normal process of probate in California. The process involves many smaller steps which had to taken care of during the whole legal process. In many cases when the property balance is more than speculated or has some tax liability to it then a tax consultant or a CPA is to be hired who estimates the overall pricing of the estate.

Below we show you how the legal procedure of Probate in California runs:

Probate - First Phase- Original Will and Codicils are filed- Legal Notice of Petition is published to the Administer Estate- Notice of Petition is filed and published in the local newspaper- Proof of Will and Codicils are filed for further enquiry- A letter is issued to all interested parties.

Probate - Second Phase- Application for Employer Identification Number- Income tax return and other legal taxes are filed- Opening estate bank account and arrange for tax returns- A mail with legal notice is sent to debtors and claims are cleared- Approval or refusal of claims are made- Property is listed for sale- A petition is filed for Confirmation of Property Sale- Court hearings are made and any final federal taxes are cleared

Probate Third Phase- Final petition is filed for distribution- A notice is sent to heirs and beneficiaries- Proof of mail is filed with court- Final order of petition is filed- Transfer of assets and properties is cleared

If in case there are any living spouse or relatives of the deceased the property is distributed in a legal way among them without giving benefit to a single person. The California state law has the rules according to which the reaming estate is distributed. The court has the final verdict on the sale or distribution of property. If a bid is overbid by any person during the hearing then the property is transferred to the highest bidder.

Sunday, November 18, 2012

A durable financial power of attorney is a writing that grants authority by a person to another person to handle his or her financial affairs. The financial subjects contained within the writing typically include: real property; tangible personal property; stocks and bonds; commodities and options; banks and other financial institutions; operation of entity or business; insurance and annuities; estates, trusts, and other beneficial interests; claims and litigation; personal and family maintenance; benefits from governmental programs or civil or military service; retirement plans; and taxes. With a durable type form, the agent's authority would not be cancelled if it was later determined that the principal had become incompetent due to an illness or injury as it would be with a nondurable power of attorney.

The principal can also list a successor agent who could replace the agent in a situation where the agent is unable or unwilling to carry out his or her duties, or resigns. If the agent is the spouse of the principal and one of them began divorce proceedings, the spouse's powers as agent would automatically be revoked by law and the successor agent could immediately step in and begin to handle the affairs of the principal.

A durable financial power of attorney is effective at the time it is signed by the principal, but there is also a "springing" durable type form. In the springing type form, the agent is authorized to begin handling the affairs of the principal upon a future event, contingency or date specified in the form. The principal may choose anyone that is an adult to determine that the event or contingency had occurred. If the event is incapacity and the principal has not chosen anyone to determine that this event had occurred, the determination can be made by a licensed physician or psychologist. The springing type form is not permitted in all states, so it is necessary to check your state laws prior to using one.

There are certain important tips that are quite useful in handling the issues related to using a durable financial power of attorney. You should choose an agent whom you can trust. It can be any adult member of your family or an adult friend. You can also verbally communicate to your agent or list instructions in your form to provide your agent with guidance and to make him or her aware of your financial assets and obligations and what acts you want him or her to perform on your behalf.

Saturday, November 17, 2012

If you are convicted of DUI, you may want to expunge your DUI record in order to get a job, loan, house, etc. Expungement refers to the process of removing or erasing your DUI records. You are required to petition the court in order to get your records expunged. This article discusses steps to clear your DUI record by covering the whole process from petitioning to obtaining expungement. Each state's expungement laws vary; therefore, this article gives you a basic idea on the process.

DUI expungement process:

1. Where to file a petition for expungement?

You need to file a petition for expungement in the superior court in the county where your DUI arrest occurred.

2. What are the grounds for denial of expungement?

You can be denied for expungement:

- if you haven't completed probation.

- if you didn't show a good reason to expunge your DUI record.

- if you are convicted of severe felony.

- if a great deal of time has passed since your arrest or conviction.

3. What are the grounds for acceptance of expungement?

You are allowed to expunge:

- if this is the only conviction on your record.

- if you didn't spend any time in state prison.

- if you have rehabilitated yourself.

4. How to file for an expungement?

- Do you need a lawyer?

You don't necessarily need a lawyer for expunging your records. It's just that this process involves a lot of paperwork and if you have a lawyer by your side, he can give you advice regarding that. If you don't wish to hire a lawyer, you should learn all the procedures that are required to get this process done.

- How long does it take?

The entire expungement process could take anywhere from 4 to 6 months.

- What is the filing fee?

The filing fee may vary from $50 to $400 depending on your case and your state.

- What forms do you need to fill and where to get them?

You need to go to your county courthouse and ask the clerk for the expungement forms. As mentioned above the forms may cost around $50 to $400. The clerk may give you the following forms: 1. Expungement petition, 2. Affidavit or proof of service form.

5. What happens after you file the petition for expungement?

After you file the petition for expungement, a copy will be sent to all agencies that have your records like arresting agency, the county attorney, the city police department etc. They may accept or refuse your request. If they accept, the court will grant your petition without hearing. If they refuse, a hearing will be held and you are required to attend. (This law can vary from state to state). You will be notified of hearing date through the mail. In some states, though, the court sets the hearing date, while in others you have to pick the date. You must ask your clerk beforehand regarding how your state's county court hearing date is set.

6. The Court hearing and decision:

Your petition for expungement may or may not be granted. If you won the expungement hearing, you must check after 60 days to see for yourself whether your records show up during a criminal record check. The 60 days period is when the court orders all the agencies to seal your record. However, if you lose your hearing, you may need to ask for an expungement once again.

Friday, November 16, 2012

To set up an LLC or limited liability company is one of the major decisions that any business or company can undertake. This form of business registration has a lot of implications for the operation and management of the company and can ultimately contribute to its success or failure. But the first thing any business that wants to set up an LLC should do is to get good advice. There are pros and cons to this type of business registration and to set up an LLC will take some time and money, the two most important resources that any business has. It is useful to examine the options before investing either.

The simplest form of business registration is a sole proprietorship. This is usually a simple registration of the fact that an individual wishes to engage in public commerce and the nature of that business. Unless there are other licenses to obtain from the local regulatory authorities because of the nature of the business, this means a trip to City Hall, filling out the required forms, paying the minimal fees, and obtaining a business number that allows the company to begin business. The individual owner can then start up operations and assume all of the liabilities and tax requirements of the business.

A more complex form of business registration is incorporation. This involves registering the business as a corporation and issuing shares in that business to others who may wish to be part of the business. The act of incorporation involves filing acts of incorporation with the state and while an individual can prepare and file these without an attorney, legal and financial advice is usually required to ensure that the documents are in order. There will have to be a Board of Directors, officers of the corporation and a method to inform shareholders of the on-going operations of the business.

Somewhere in the middle of the previous two options is the option to set up an LLC. An LLC is more complex than a sole proprietorship and simpler than incorporation. It has some benefits and disadvantages. The disadvantages to choosing to set up an LLC are mostly in the time and costs of going through the process. Once the business has been set up as an LLC or a limited liability company the advantages begin to kick in.

The major reason to set up an LLC is to protect the owner or owners of a business from liability. This form of business registration limits the liabilities of the owners to the level of investment that they have made in the business. All other debts, responsibilities or liabilities that are incurred or caused by the operation of the business are not their responsibility.

The other main reason to set up an LLC is for taxation purposes. Income from a limited liability company is only taxed once and the state does not levy additional income tax on the company or business itself. This is different from a C-corporation where income is seen as both corporate and personal and taxed at both levels when dividends are taken.

Wednesday, November 14, 2012

If you are looking for a simple, one-line answer to the question above, YES, you do need a will and living trust to divide your assets to your heirs, closest living family members, blood relatives, or whoever you fancy! If you do not leave a will written, your assets might not distributed the way you'd like, and the court will decide which of your living members get access to your properties and liquid stock. Having a will and living trust is thus, extremely important so that you are fully in control of your assets after your death.

Why are Wills and Living Trusts Important?

Wills and living trusts are the only way you can make sure your assets are passed on the ones you are related to, with the distributions you deem correct. Particularly, if you have small children, wills are great ways to establish guardianship of minors and ensure that your kids get their share of your assets and monetary accumulations left behind.

As intestacy laws change from one state to another, you do not know who gets how much access to your property if you do not leave a will behind.

The Difference Between a Will and a Trust

A will is a document that allows you to fix which parts of your assets are divided amongst your heirs and family in the event of death. After you die, all the assets you own would be divided as per the instructions in the will, and thus, you are solidly in control of your funds. The court ensures that the rightful distribution of your funds takes place after your death and there are no disputes.

A living trust is more like a legal mechanism that makes sure you draft terms and conditions for use of your assets and controls gifts and charities you are likely to keep continuing after your death. Living trusts are simply known to take care of your life insurance policies and other benefits and will not take into account the complete accrued financial holdings and amounts you have.

Thus, legally, you are recommended to have both wills and trusts put up in the event of an untimely death thus, legally, you are recommended to have both wills and trusts put up in the event of an untimely death. There are provisions for you to change the will as many times you'd want to. The last edition of the will you sign would be considered valid during the time of your death.

Tuesday, November 13, 2012

Few would argue that planning for your family's future beyond your own life makes good financial sense. What some don't realize is that provisions like the living trust can do more than ensure a future income. It can also help to ensure your family's emotional security and even physical well being during a difficult life period.

The first 12-24 months after the passing of a loved one are the most difficult. Families are dealing with grief and trying to adjust to life without a significant family member.

Besides the emotional pain that accompanies such an event, new financial stresses also begin to emerge. This is particularly true in cases where the loved one was a key income provider in his or her family. Between the mental stress and the financial and legal matters that must be attended to upon a death, some families find it impossible to cope with the pressure.

The living trust was created to relieve some of the financial and legal stresses that come with a family member's passing. It allows family members to forgo some of the legal issues surrounding the transfer of property. Instead, they are able to more fully concentrate on working through their grief and moving toward healing.

A living trust essentially serves as a replacement for a will. Just like a will, it allows an individual to dictate how his estate should be divided upon his death.

The major difference between it and a traditional will is that a will must be probated. A living trust doesn't need to be probated.

"Probating" refers to the process of having a deceased person's will examined by a legal court. The court is responsible for determining the validity of the will and for interpreting it. The court appoints an executor, whose job is, in part, to help oversee execution of the will.

The process of probating a will generally takes months, at the very least. One year is typical. It's not uncommon, especially in the case of a large estate, for the probating process to take years.

Not only does this delay the execution of the deceased's final wishes, the beneficiaries stand to suffer financially during the process. It may be months or years before they receive their share of the estate.

In the mean time, living and legal expenses mount. Many of these expenses cannot be deferred until the time the inheritance is received.

The living trust was designed to eliminate the probating process. It has five distinct advantages over the traditional will, including:

1) Saving legal and court expenses: It doesn't have to be probated through the court system. It can save the deceased's family thousands of dollars in legal fees.

2) Assets are distributed quickly: It takes just a few weeks to a few months to finalize and distribute the deceased's assets through a living trust. This is a significant contrast to the average of 12 months it takes when using a traditional will.

3) It maintains your family's privacy: Probate records are open to the public. Living trust asset distribution, on the other hand, is not subject to public record. Many people appreciate the veil of privacy that accompanies this instrument.

4) A home can be transferred to the living trust: The same is not the case for those using a traditional will.

5) Saving on estate taxes: A living trust can save your family thousands to tens of thousands of dollars in estate taxes, depending on the size of your estate.

A living trust is prepared in much the same way as a will. However, it need not be prepared by an attorney. Instead, it can be prepared by an expert.

It can also be prepared by the individual himself. It need only be legally registered once completed. Different states have different laws regarding this and documents that must accompany it. Be sure to check the laws in your own state.

Sunday, November 11, 2012

Registering a California LLC is not as difficult as it may seem. There are a number of requirements that you must follow to form your LLC in California. The primary requirement is to file your Articles of Organization with the California Secretary of State. Once filed, the approval process will take a few weeks, but the hard part is done.

The Articles of Organization must contain the following:

1.) The name of the limited liability company.

2.) The following statement:

The purpose of the limited liability company is to engage in any lawful act or activity for which a limited liability company may be organized under the Beverly-Killea Limited Liability Company Act.

3.) The name and address of the initial agent for service of process.

4.) State whether the company will be managed by members or managers.

5.) The articles need to be signed by the Organizer.

You can include additional articles, but they are not required by the state office. It will depend on your business model, and your specific situation. If you are unclear about the best solution for you please consult a lawyer in California.

Additional Articles

a.) You can include additional language to limit the liability of the members.

b.) You can include an article regarding the events under which a dissolution may occur.

c.) There can be articles included to limit the powers of certain members or managers.

While it can be complex, registering a corporation in California can be both fun and easy. Take your time to make sure that you have followed the appropriate requirements and you can save time and money also.

Saturday, November 10, 2012

An Advance Health Care Directive is the best way to make sure that your health care wishes are known and considered if for any reason you are unable to speak for yourself. By completing a form called an "Advance Health Care Directive" California law allows you to appoint another person to be your health care "agent." This person (who may also be known as your "attorney-in-fact")will have legal authority to make decisions about your medical care if you become unable to make these decisions for yourself.

Friday, November 9, 2012

A power of attorney (POA) or "power," is a legal document. You use it to give someone the authority to act for you. You are the principal. He is your agent. The person acting for you is also known as your "attorney-in-fact."

There are two primary types: the general and the special.

The special one is used to give another person authority to do one single thing.

The general one is not limited to a specific purpose. If you want someone to be able to act on your behalf while you are out of the country then the general one is what you need.

Now let us say you are going to Afghanistan, on active duty. You want to give your wife the right to do just about anything while you are gone.

Here is a how it might look:

I, Andy Rasmussen, do hereby grant my wife, Jesica Rasmussen, a general POA to perform any action on my behalf and to sign my name to any documents needed to accomplish said actions until I return home. Your signature and the date.

A notary seal is not required but if you are leaving the country for military service you might want to dress it up a bit and include a notary section. Then sign it in front of a notary just so your wife does not have any trouble with it while you are gone.

Now let us say you are caring for your invalid mother. She is still mentally competent but she wants you to take care of her affairs and pay her bills. The general one is what is called for. Here is how it might look:

I, Sally Smith, do hereby grant my daughter Louisa Lewis, a general POA to handle any and all of my affairs, including personal, business and other. Sally's signature and the date.

Once again, given the circumstances it would be best to have a notary section on this one and to get it properly notarized.

Let us say Louisa in the above example is worried about her mother becoming mentally incapacitated. In that case Louisa would have to go to court to get permission to manage her mother's affairs.

What is called for is a "durable" POA. It is still "general" but in this case we will also make it "durable" which means it continues even if mother becomes mentally disabled. Here is how it might look:

I, Sally Smith, do hereby grant my daughter Louisa Lewis, a general power to handle any and all of my affairs, to include personal, business and other. This shall continue and survive even if I become disabled whether mentally disabled or physically disabled. Sally's signature and the date.

For sure you would want to have this one notarized and it would be best that you had it drafted by or at least approved by an attorney who works primarily in the area of estate planning.

It is common to see some very comprehensive i.e. long (10-20 pages) durable powers of attorney. The reasoning behind these very thorough documents is that some financial institutions are very reluctant to rely upon broad, sweeping statements that a principal has granted all authority to their agent to do anything whatsoever.

Some banks, for example, who are dealing with an agent want to see very specific language that pertains to the actual transaction that is being carried out for the principal.

Also, in some states there is no penalty for not honoring a POA. For example, if someone chooses not to deal with an agent because they have their doubts about the true extent of the agent's authority.

Conclusion

A general power of attorney can be a very simple document. However, since it can be used so broadly, it is best that it be given more care and attention than a simple special one. When dealing with the aged or infirm you should consider a durable power of attorney. Have an attorney draft it or at least review it.

DisclaimerThis article is intended to inform. Please seek legal advice in your state of residence if your situation involves any matter of consequence.